District attorney 101: the power they wield

District Attorneys are among the most powerful people in the criminal legal system in Massachusetts, and play a major role in determining the way criminal cases are initiated and ultimately resolved. They wield a substantial amount of power throughout the judicial process – from charging decisions to sentencing recommendations.

As a former prosecutor, take it from me: DAs make a difference in people’s lives, communities, and the criminal legal system. Here’s how:

Their main responsibility is to pursue justice on behalf of the Commonwealth when other people are accused of breaking the law. When the police arrest someone and charge them with a crime in district court, the local District Attorney’s office has the power to prosecute those cases, divert the accused to a program or drug treatment, or dismiss the case altogether.

Once a person is arraigned or has the charges against them formally read, a judge will make a bail determination. Here’s where the DAs come in: it is rare for a judge to order bail if the local District Attorney’s office has not made a request for bail. Despite the presumption of innocence, the court will oblige the prosecutor’s request and order people to be held unless bail is paid or other restrictions – like travel limitations –followed. In addition to making the initial bail request, DAs can ask a judge to revoke a person’s bail and take them back into custody, even if they previously made bail.

The DA’s office also has the responsibility of providing the evidence they will use to prosecute the case to the person charged. In addition to being in control of the evidence, they also have the police who work with them to collect and produce the evidence. Although a person charged with a crime is presumed innocent and not required to prove their innocence, they may be the best person to know exculpatory evidence – or evidence that’s favorable to the defendant. That means they may need to hire an investigator to gather evidence that the District Attorney’s office doesn’t have.

There are also situations where District Attorneys can take people’s property, including money, even if the person hasn’t been convicted of a crime. Civil asset forfeiture is a way for prosecutors to seize property and money that law enforcement officers believe is connected to criminal activity. Here in Massachusetts, our standard for taking that money is very low, and the burden is on the owner of the property to prove it is not connected to criminal activity. As a result, people arrested and charged with low-level offenses have to fight in court to retrieve money that was seized by police and being forfeited by prosecutors. Massachusetts DAs are encouraged to spend at least 10 percent of forfeited funds on community-based crime prevention initiatives, but many fail to meet that recommendation.

District Attorneys also have a powerful tool to help “resolve” cases: mandatory minimums. These are statutorily mandated sentences that cannot be reduced by a judge. People serving mandatory minimums do not receive credit for participation in programs or for positive behavior while incarcerated. DAs use these mandatory minimum sentences to leverage guilty pleas from people who don’t want to run the risk of facing a prolonged mandatory sentence after trial. People charged with mandatory minimums often plea to a sentence that the prosecutor wants, not what a judge determines is best.

As the top prosecutor, DAs also help set policies. Despite efforts to reform the criminal legal system, DAs often stand in opposition to meaningful reforms. Over the last several legislative sessions, community activists, academics, and criminal law reform advocates have championed evidence-based reforms to decrease incarceration and promote a more fair and equitable system of justice. District Attorneys, however, have consistently blocked these efforts by using their influence in the legislature to encourage lawmakers to oppose reforms. In fact, despite crime survivors’ desires for a more rehabilitative system, DAs have opposed these important reforms in favor of harsher sentences or policies that increase their power.

Government works best when people know what it’s doing – and that’s why we’re setting out as a campaign and a network to inform voters about one of our most powerful elected officials. Stay tuned for other resources – blog posts like this one, videos, and other learning tools – so we can hold our local elected District Attorneys accountable.

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Rahsaan Hall is the Director of the Racial Justice Program for the American Civil Liberties Union of Massachusetts. In this role Rahsaan helps develop the ACLU of Massachusetts’ integrated advocacy approach to address racial justice issues. Through legislative advocacy, litigation and community engagement, the program works on issues that deeply impact communities of color and historically disenfranchised communities.